Tapering off Vaping: The New Laws in Australia and What It All Means

What Is Changing?

The long-awaited restriction on the sale and importation of disposable vaping devices in Australia has been looming over vapers, health practitioners and retailers for some time. In December 2023, the first step was taken by the Governor-General in Federal Executive Council to institute Australia’s new anti-vaping through the commencement of the Therapeutic Goods Legislation Amendment (Vaping) Regulations 2023 (the Regulations).

The Regulations have initiated a multi-stage push to address the increasing health risks posed by vaping, specifically for young people in Australia.  However, despite common misconceptions, not all instances in which disposable vapes are possessed, purchased, sold and imported are prohibited under the Regulations. Whether you are a health practitioner, retailer or pharmacist importing or selling therapeutic vapes, or an individual looking to get your nicotine fix, you will be required to familiarise yourself with the Regulations, who they apply to and how they will affect you moving forward.

What Vapes Are What?

It is important to note that not all vapes are created equally in the eyes of Australian Federal Law. The Regulations distinguish between the types of vapes that exist, their uses and the restrictions that apply to each type.

Under the Regulations, references to:

• ‘vaping devices’ mean devices that generate or release, or are designed to generate or release, using an electronic heating element, an aerosol, vapour, or mist for direct inhalation (whether or not this device is assembled, complete or operable);
• ‘disposable vaping devices’ mean vaping devices that are pre-filled with a vaping substance and not intended to be disassembled or refilled;
• ‘nicotine vaping devices’ mean vaping devices containing nicotine;
• ‘therapeutic vaping devices’ mean vaping devices that are intended for therapeutic use and obtained through valid medical prescriptions; and
• ‘vaping goods’ include all vaping substances, vaping accessories and vaping devices.

Who Is Affected?

The Regulations are Federal Law. This means that, subject to minor differences in the sale and importation laws of each state and territory in Australia, the Regulations will apply equally to each person in every state of Australia.

Can I Still Use Vapes?

The Regulations do not criminalise the possession of vapes for personal use. In fact, the Australian Government has confirmed that it does not intend to criminalise the personal use or possession of vapes.

However, given the increased restrictions on the sale and importation of vapes throughout Australia, individuals will be unable to purchase nicotine vapes without a valid prescription making their personal possession near impossible.

Can I Still Sell Vapes?

Whether or not a retailer can lawfully sell vapes in Australia will depend on:

• the type of licence held;
• the type of vapes being sold;
• who the vapes are being sold to; and
• the date the vapes were imported into Australia.

It is now unlawful for any retailer (including tobacconists, corner stores and vape shops) that is not a pharmacy to sell non-therapeutic nicotine vapes, irrespective of when the vapes were imported and their nicotine content. Retailers will still be able to sell non-therapeutic vapes imported before 1 March 2024, provided they do not contain nicotine or any other medicine, or make therapeutic claims.

Under the Regulations, pharmacies may still sell nicotine vapes when presented with a valid prescription. They may also continue to sell therapeutic vapes imported or manufactured before 1 March 2024, provided they meet the relevant product standards that applied at the time of importation.

Can I Import Vapes for Personal Use?

Under the Regulations, the importation of vapes under the Personal Importation Scheme has now ended. This means individuals and patients can no longer order vapes directly from overseas, even if they have a prescription.

A limited exception applies to international travellers bringing therapeutic vaping goods into Australia for themselves, or someone in their care arriving on the same ship or aircraft.

The maximum allowable quantities under this exception are:

• 2 vapes in total (whether disposable or reusable);
• 20 vape accessories (including cartridges, capsules or pods); and
• 200mL of vape substance in liquid form.

Can I Import Vapes as a Retailer?

The importation of all non-therapeutic vapes, irrespective of whether or not they contain nicotine, is now unlawful. The importation of therapeutic vapes will be lawful in certain circumstances, provided importers can adhere to strict pre-market requirements (the Requirements).

As per the Requirements, importers must now obtain a customs licence and permit to import therapeutic vapes. They must also provide notification to the Therapeutic Goods Administration (TGA) confirming that their products comply with the Requirements. Examples of new market standards include the limitation of vape flavours to mint, menthol or tobacco and the imposition of additional requirements for vaping devices previously excluded from the therapeutic goods framework.

To assist importers and manufacturers in complying with the Requirements, the Australian Government has released notification, licence and permit forms and instructions on the TGA website. The TGA also intends to publish a list of therapeutic vapes that have been notified by importers as compliant with the Requirements.

Will I Be Penalised for Non-Compliance?

The penalties for offences under the Regulations and Requirements have not yet been confirmed under law. However, the Government has indicated that penalties will include:

• the seizure and destruction of any goods suspected to be unlawful;
• specific educational obligations and courses; or
• enforcement action (including infringement notices, enforceable undertakings, and court action).

What About Cannabis Vapes?

Therapeutic vapes containing medicinal cannabis are not subject to the new Requirements and continue to be governed by existing regulations. In contrast, the importation of unfilled therapeutic cannabis vaping devices will be subject to the new notification requirements of customs legislation.

What Does the Future Look Like?

Throughout 2024, the Government intends to strengthen product standards for therapeutic vapes, including reductions to permissible nicotine concentrations and further restrictions on pharmaceutical packaging.

Get Help from Our Experienced Criminal Defence Lawyers

The new Regulations are not straightforward and carry with them the risk of potential criminal offences for non-compliance. The Regulations are forewarned to in consistent motion in the coming years as this new area of law evolves. Your legal obligations will be unique to your business or role, and it will be critical to ensure that you are compliant with all obligations.

If you require legal advice relating to your obligations or liability under the Regulations, or if you have been charged with a related offence, contact us at (07) 3221 4999 for immediate assistance.